Insufficient evidence to establish abetment or conspiracy in sexual assault cases; only charge under Section 21 of POCSO Act sustained.

ORDER :

G.GIRISH, J.

The 4^th accused in S.C No.1168/2021 on the files of Additional Sessions Court (POCSO), Muvattupuzha, has filed this petition under Section 528 of the Bharatiya Nagarik Suraksha Sanhita, 2023 to quash the proceedings against him in the said case. The offences charged against him, along with the other three accused, are under Sections 450, 354-D,120B, 109, 201, 212, 506(ii), 376(2)(h), 376(2)(n), 313, 363, 370 read with Section 3 4 I.P.C and Sections 4 r/w 3(a), 3(b) and 3(c), 6 r/w 5(j)(ii) and 5(q), 8 r/w 7, 9(l), 11(iv) r/w 10, 21 r/w 19(1) of Protection of Children from Sexual Offences Act, 2012 and Section 67B(b) of IT Act, 2000 and Section 3 (4)(a) of the Medical Termination of Pregnancy Act, 1971.

2. The prosecution case is that the petitioner abetted the offences of rape and penetrative sexual assault perpetrated by the first accused upon the de facto complainant/third respondent. It is also alleged that he committed criminal conspiracy to cause miscarriage, destruction of evidence and trafficking of a female child for sexual exploitation.

3. The prosecution case, in conspectus, is as follows:

The first accused managed to win over the intimacy and love of the de facto complainant, a girl aged 16 years, by getting acquainted with her through social media. On 09.12.2020 at about 11:45 p.m, the first accused came to the premises of the house of the de facto complainant outside her bedroom and resorted to sexual overtures by getting hold of her hands, breasts and genitals through the window of that room. Thereafter, he obtained the naked videos of the de facto complainant by threatening her that she would be done away with, if she did not co-operate. On 20.03.2021, the first accused entered into the bedroom of the de facto complainant at about 12:00 midnight, after getting the doors opened through the de facto complainant by subjecting her to the threat that her naked videos would be circulated in social media. On that night, the first accused committed penetrative sexual assault upon the de facto complainant at the bedroom, and impregnated her. The pregnancy of the de facto complainant was confirmed by the first accused with a pregnancy testing card purchased from a medical store belonging to CW30. Thereafter, he purchased abortion pills from the above medical store and administered the same to the de facto complainant on 25.04.2021 and 27.04.2021. In the meanwhile, he again resorted to penetrative sexual assault upon the de facto complainant on 20.04.2021, 25.04.2021 and 27.04.2021. The first accused purchased the abortion pills pursuant to the conspiracy with the 4th accused (petitioner herein). The first accused confirmed the abortion by testing the urine of the de facto complainant at DDRC Lab, Muvattupuzha on 05.05.2021, and it was informed to the 4th accused. The 4^th accused, who is the District General Secretary of Youth Congress, suppressed the above criminal acts committed by the first accused and conspired with him to save him from criminal prosecution. On 31.05.2021, the first accused took the de facto complainant in the car belonging to the 4th accused to the DDRC Lab, Muvattupuzha and conducted the blood test to confirm that she is not pregnant. While returning to the house of the de facto complainant in the car of the 4th accused, she was threatened by the 4th accused that if she disclosed the incidents to anybody, she would be done away with by making use of his political influence.

4. The incident involved in this case came to light pursuant to the disclosure ma